UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 9, 2010
A. SCHULMAN, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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0-7459
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34-0514850
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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3550 West Market Street,
Akron, Ohio
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44333
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(330) 666-3751
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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ITEM 5.02
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DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF
CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN DIRECTORS.
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At the 2010 Annual Meeting of Stockholders (the 2010 Annual Meeting) of A. Schulman, Inc.
(the Company) held on December 9, 2010, the Companys stockholders approved the adoption of the
A. Schulman, Inc. 2010 Value Creation Rewards Plan (the 2010 Rewards Plan). The description of
the 2010 Rewards Plan provided below is qualified in its entirety by reference to the complete
terms of the 2010 Rewards Plan, a copy of which is attached hereto as Exhibit 10.1 and incorporated
by reference herein.
The purpose of the 2010 Rewards Plan is to foster and promote the Companys long-term
financial success and increase stockholder value by motivating performance through incentive
compensation. The 2010 Rewards Plan is intended to encourage participants to acquire and maintain
ownership interests in the Company and to attract and retain the services of talented individuals
upon whose judgment and special efforts the successful conduct of the Companys business is largely
dependent.
The 2010 Rewards Plan became effective upon its approval by the stockholders on December 9,
2010 and, unless earlier terminated, will continue until December 9, 2020. A total of 1,375,000
shares of common stock may be issued under the 2010 Rewards Plan.
The 2010 Rewards Plan provides for the award of nonqualified stock options, incentive stock
options, stock appreciation rights, restricted shares of common stock, other stock-based awards,
performance-based awards and cash-based awards to directors, employees, and consultants of the
Company. The 2010 Rewards Plan may be terminated, suspended or amended by the Companys Board of
Directors without stockholder approval unless the amendment materially increases the benefits
accruing to participants, materially increases the aggregate number of shares of common stock
authorized for grant under the 2010 Rewards Plan, materially modifies the eligibility requirements
for participation or is required by any law, regulation or stock exchange rule.
A description of the material terms of the 2010 Rewards Plan was included under the caption
Proposal 3 Adoption and Approval of A. Schulmans 2010 Value Creation Rewards Plan in the
Companys definitive proxy materials for the 2010 Annual Meeting as filed with the Securities and
Exchange Commission (the Commission) on November 5, 2010.
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ITEM 5.07
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SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
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At the 2010 Annual Meeting, stockholders of the Company voted on three proposals, each of
which are described in detail in the Companys definitive proxy materials, which it filed with the
Commission and first made available to stockholders on November 5, 2010. The final voting results
for each proposal are set forth below. At the close of business on October 15, 2010, the record
date for the 2010 Annual Meeting, 31,487,229 shares of the Companys common stock, $1.00 par value,
were outstanding and entitled to vote. At the Annual Meeting, 28,811,663, or approximately 91.50%,
of the outstanding shares of common stock entitled to vote were represented in person or by proxy.
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1.
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To elect eleven directors whose terms will expire at the annual meeting of
stockholders in 2011:
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Votes
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Broker
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Name
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Votes For
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Withheld
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Non-Votes
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Eugene R. Allspach
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25,004,704
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450,043
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3,356,916
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Gregory T. Barmore
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24,391,381
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1,063,366
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3,356,916
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David G. Birney
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21,934,379
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3,520,368
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3,356,916
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Howard R. Curd
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25,001,840
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452,907
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3,356,916
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Joseph M. Gingo
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24,095,098
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1,359,649
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3,356,916
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Michael A. McManus, Jr.
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24,656,451
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798,296
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3,356,916
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Lee D. Meyer
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25,005,150
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449,597
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3,356,916
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James A. Mitarotonda
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21,830,991
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3,623,756
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3,356,916
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Ernest J. Novak, Jr.
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21,463,705
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3,991,042
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3,356,916
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Dr. Irvin D. Reid
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25,000,940
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453,807
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3,356,916
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John B. Yasinsky
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21,365,950
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4,088,797
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3,356,916
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2.
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To approve the ratification of the appointment of PricewaterhouseCoopers LLP as the
Companys independent registered public accounting firm for the fiscal year ending August
31, 2011:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Votes
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27,398,483
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1,360,576
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52,604
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0
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3.
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To approve the adoption of the Companys 2010 Rewards Plan:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Votes
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18,640,789
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6,535,566
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278,392
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3,356,916
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ITEM 9.01
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FINANCIAL STATEMENTS AND EXHIBITS.
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(d) Exhibits.
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Exhibit Number
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Description
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10.1
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A. Schulman, Inc. 2010 Value Creation Rewards Plan (filed herewith).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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A. Schulman, Inc.
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By:
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/s/ David C. Minc
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David C. Minc
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Vice President, Chief Legal Officer and
Secretary
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Date: December 10, 2010
Exhibit 10.1
A. SCHULMAN, INC.
2010 VALUE CREATION REWARDS PLAN
The Plan is intended to foster and promote the long-term financial success of the Company and its
Affiliates and to increase stockholder value by providing Participants an opportunity to acquire
and maintain an ownership interest in the Company and enabling the Company and its Affiliates to
attract and retain the services of outstanding individuals upon whose judgment and special efforts
the successful conduct of the Companys business is largely dependent.
ARTICLE I
DEFINITIONS
When used in the Plan, the following capitalized words, terms and phrases shall have the
meanings set forth in this Article I. For purposes of the Plan, the form of any word, term or
phrase shall include any and all of its other forms.
1.1
Act
shall mean the Securities Exchange Act of 1934, as amended from time to time, or any
successor thereto.
1.2
Affiliate
shall mean any entity with whom the Company would be considered a single
employer under Section 414(b) or (c) of the Code, but modified as permitted under Treasury
Regulations promulgated under any Code section relevant to the purpose for which the definition is
applied.
1.3
Award
shall mean any Nonqualified Stock Option, Incentive Stock Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Unit, Other Stock-Based Award or Cash-Based
Award granted pursuant to the Plan.
1.4
Award Agreement
shall mean any written or electronic agreement between the Company and a
Participant that describes the terms and conditions of an Award. If there is a conflict between
the terms of the Plan and the terms of an Award Agreement, the terms of the Plan shall govern.
1.5
Beneficial Owner
shall mean a beneficial owner as defined in Rule 13d-3 under the Act.
1.6
Board
shall mean the Board of Directors of the Company.
1.7
Cash-Based Award
shall mean a cash Award granted pursuant to Article X of the Plan.
1.8
Cause
shall mean, unless otherwise provided in the related Award Agreement or in any
employment agreement between the Participant and the Company or any Affiliate or in any other
agreement between the Participant and the Company or any Affiliate (but only within the context of
the events contemplated by the employment agreement or other agreement, as applicable), a
Participants (a) gross neglect of duties owed to the Company or its Affiliates, (b) knowing
commission of misfeasance or permission of nonfeasance of duties in any material respect, or (c)
commission of a felony.
1.9
Change in Control
shall mean, with respect to the payment, exercise or settlement of
any Award:
(a) Any Person (as defined below), within any 12 month period, becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or its Affiliates other than
in connection with the acquisition by the Company or its Affiliates of a business) representing 30
percent or more of either the then outstanding Shares of common stock of the Company or the
combined voting power of the Companys then outstanding securities; or
(b) The following individuals cease for any reason to constitute a majority of the number of
persons then serving on the Board (Board Members): individuals who, on the date hereof,
constitute the Board and any new Board Member (other than a Board Member whose initial assumption
of office is in connection with an actual
or threatened election contest, including, but not limited to, a consent solicitation relating
to the election of Board Members) whose appointment or election by the Board or nomination for
election by the Companys stockholders was approved by a vote of at least two-thirds of the Board
Members then still in office who either were Board Members on the date hereof or whose appointment,
election or nomination for election was previously so approved; or
(c) The Company consummates any other transaction involving a merger or consolidation with any
other corporation or issues voting securities in connection with the consummation of a merger or
consolidation of the Company (or any direct or indirect subsidiary of the Company) pursuant to
applicable stock exchange requirements, other than: (i) a merger or consolidation in which voting
securities of the Company outstanding immediately prior to such merger or consolidation continue to
represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or any subsidiary of the
Company, at least 70 percent of the combined voting power of the voting securities of the Company
or such surviving entity or any parent thereof outstanding immediately after such merger or
consolidation; (ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities Beneficially Owned by
such Person any securities acquired directly from the Company or its Subsidiaries other than in
connection with the acquisition by the Company or its Subsidiaries of a business) representing 30
percent or more of either the then outstanding shares of common stock of the Company or the
combined voting power of the Companys then outstanding securities, or (iii) any transaction or
series of integrated transactions immediately following which the record holders of the common
Shares of the Company immediately prior to such transaction or series of transactions continue to
have substantially the same proportionate ownership in an entity which owns all or substantially
all of the assets of the Company immediately following such transaction or series of transactions;
or
(d) The Company liquidates, dissolves, or sells or disposes of all or substantially all of the
Companys assets, other than a sale or disposition by the Company of all or substantially all of
the Companys assets to an entity, at least 70 percent of the combined voting power of the voting
securities of which are owned by stockholders in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing, any event or transaction which would otherwise constitute a
Change in Control (a Transaction) shall not constitute a Change in Control for purposes of this
Plan if, with respect to a Participant, the Participant participates as an equity investor in the
acquiring entity or any of its Affiliates (the Acquiror). For purposes of the preceding sentence,
such Participant shall not be deemed to have participated as an equity investor in the Acquiror by
virtue of: (x) obtaining Beneficial Ownership of any equity interest in the Acquiror as a result of
the grant to the Participant of an incentive compensation award under one or more incentive plans
of the Acquiror (including, but not limited to, the conversion in connection with the Transaction
of incentive compensation awards of the Company into incentive compensation awards of the
Acquiror), on terms and conditions substantially equivalent to those applicable to other executives
of the Company immediately prior to the Transaction, after taking into account normal differences
attributable to job responsibilities, title and similar matters; (y) obtaining Beneficial Ownership
of any equity interest in the Acquiror on terms and conditions substantially equivalent to those
obtained in the Transaction by all other stockholders of the Company or (z) passive ownership of
less than 3 percent of the stock of the Acquiror.
For purposes of this definition, Person has the meaning given in Section 3(a)(9) of the Act,
as modified and used in Sections 13(d) and 14(d) thereof, and shall include persons acting as a
group within the meaning of Section 409A of the Code; provided, however, that except that the term
will not include (i) the Company or any Related Entity, (ii) a trustee or other fiduciary holding
securities under any employee benefit plan of the Company or any Related Entity, (iii) an
underwriter temporarily holding securities pursuant to an offering of those securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
1.10
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time, or any
successor thereto.
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1.11
Committee
shall mean:
(a) in the case of Awards to Directors, the entire Board; and
(b) in the case of all other Awards, the Compensation Committee of the Board (or a
subcommittee thereof), which will be comprised of at least two directors, each of whom is an
outside director, within the meaning of Section 162(m) of the Code and the Treasury Regulations
promulgated thereunder, a non-employee director within the meaning of Rule 16b-3 under the Act,
and an independent director under the rules of the exchange on which the Shares are listed.
1.12
Company
shall mean A. Schulman, Inc., a Delaware corporation, and any successor
thereto.
1.13
Consultant
shall mean any person who renders services to the Company or any Affiliate
other than an Employee or a Director.
1.14
Covered Employee
shall mean a covered employee within the meaning of Section 162(m)
of the Code and the Treasury Regulations promulgated thereunder.
1.15
Director
shall mean a person who, on an applicable grant date, (a) is an elected member
of the Board or of a Related Board (or has been appointed to the Board or to a Related Board to
fill an unexpired term and will continue to serve at the expiration of that term only if elected by
stockholders); and (b) is not an Employee.
1.16
Disability
shall mean:
(a) with respect to the payment, exercise or settlement of any Award that is (or becomes)
subject to Section 409A of the Code (and for which no exception applies): (i) the Participant is
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; (ii) the Participant is, by reason of any
medically determinable physical or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months under an accident and health plan
covering Employees of the Participants employer; or (iii) the Participant is determined to be
totally disabled by the Social Security Administration or Railroad Retirement Board; and
(b) with respect to any other Award, disability as defined in Section 22(e)(3) of the Code;
Disability will be determined by the Committee in good faith upon receipt of sufficient
medical advice from one or more individuals, selected by the Committee, who are qualified to give
professional medical advice.
1.17
Employee
shall mean any person who is a common law employee of the Company or any
Affiliate. A person who is classified as other than a common-law employee but who is subsequently
reclassified as a common law employee of the Company or any Affiliate for any reason and on any
basis shall be treated as a common law employee only from the date that reclassification occurs and
shall not retroactively be reclassified as an Employee for any purpose under the Plan.
1.18
Fair Market Value
shall mean the value of one Share on any relevant date, determined
under the following rules:
(a) If the Shares are traded on an exchange, the reported closing price on the relevant date
if it is a trading day, otherwise on the next trading day;
(b) If the Shares are traded over-the-counter with no reported closing price, the mean between
the lowest bid and the highest asked prices on that quotation system on the relevant date if it is
a trading day, and if the relevant date is not a trading day, then on the next trading day; or
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(c) If neither (a) nor (b) applies: (i) with respect to Options, Stock Appreciation Rights and
any Award that is subject to Section 409A of the Code, the value as determined by the Committee
through the reasonable application of a reasonable valuation method, taking into account all
information material to the value of the Company, within the meaning of Section 409A of the Code
and the Treasury Regulations promulgated thereunder; and (ii) with respect to all other Awards, the
fair market value as determined by the Committee in good faith.
1.19
Full Value Award
shall mean an Award that is settled by the issuance of Shares, other
than an Incentive Stock Option, a Nonqualified Stock Option or a Stock Appreciation Right.
1.20
Incentive Stock Option
shall mean an Option that is intended to satisfy the
requirements of Section 422 of the Code.
1.21
Nonqualified Stock Option
shall mean an Option that is not intended to be an Incentive
Stock Option.
1.22
Option
shall mean an option to purchase Shares which is granted pursuant to Article V
of the Plan. An Option may be either an Incentive Stock Option or a Nonqualified Stock Option.
1.23
Other Stock-Based Award
shall mean an Award granted pursuant to Article IX of the Plan.
1.24
Participant
shall mean an Employee, Director or Consultant who is granted an Award
under the Plan.
1.25
Performance-Based Award
shall mean an Award granted pursuant to Article XI of the Plan.
1.26
Performance Criteria
shall mean (a) with respect to a Participant who is or is likely
to be a Covered Employee and for an Award that is intended to constitute qualified performance
based compensation within the meaning of Section 162(m) of the Code, the performance criteria
described in Section 11.2(a) of the Plan, and (b) with respect to any other Participant, any
performance criteria determined by the Committee in its sole discretion.
1.27
Plan
shall mean the A. Schulman, Inc. 2010 Value Creation Rewards Plan, as set forth
herein and as may be amended from time to time.
1.28
Related Board
shall mean the board of directors of any incorporated Affiliate or the
governing body of any unincorporated Affiliate.
1.29
Restricted Stock
shall mean an Award granted pursuant to Article VII of the Plan under
which a Participant is issued Shares which are subject to specified restrictions on vesting and
transferability.
1.30
Restricted Stock Unit
shall mean an Award granted pursuant to Article VIII of the Plan
under which a Participant is issued a right to receive a specified number of Shares or a cash
payment equal to a specified number of Shares, the settlement of which is subject to specified
restrictions on vesting and transferability.
1.31
Retirement
shall mean, unless otherwise provided in the related Award Agreement or in
any employment agreement between the Participant and the Company or any Affiliate or in any other
agreement between the Participant and the Company or any Affiliate (but only within the context of
the events contemplated by the employment agreement or other agreement, as applicable): (a) with
respect to Participants who are Employees, voluntary termination after age 60; and (b) with respect
to Participants who are Directors, voluntary termination of service as a Director (i) after serving
one full term as elected Director, and (ii) being nominated for election to a second consecutive
term.
1.32
Shares
shall mean the common shares, par value $0.01 per share, of the Company or any
security of
the Company issued in satisfaction, exchange or in place of these shares.
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1.33
Stock Appreciation Right
shall mean an Award granted pursuant to Article VI of the Plan
under which a Participant is given the right to receive the difference between the Fair Market
Value of a Share on the date of grant and the Fair Market Value of a Share on the date of exercise
of the Award.
1.34
Subsidiary
shall mean with respect to an Incentive Stock Option, an Affiliate that is
also a subsidiary corporation as defined under Section 424(f) of the Code.
1.35
Treasury Regulations
shall mean the regulations issued by the United States Department
of the Treasury with respect to the relevant section of the Code.
ARTICLE II
SHARES SUBJECT TO THE PLAN
2.1
Number of Shares Available for Awards
. Subject to this Article II, the aggregate number
of Shares with respect to which Awards may be granted under the Plan shall be 1,375,000, all of
which may be granted with respect to Incentive Stock Options. The Shares may consist, in whole or
in part, of treasury Shares, authorized but unissued Shares not reserved for any other purpose or
Shares purchased by the Company or an independent agent in either a private transaction or in the
open market. Subject to this Article II: (a) upon a grant of a Full Value Award, the number of
Shares available for issuance under the Plan shall be reduced by 2.48 Shares for each Share subject
to such Full Value Award, and any Shares underlying such an Award that become available for future
grant under the Plan pursuant to Section 2.2 shall be added back to the Plan in an amount equal to
the number of Shares subject to the Award at the date of grant, and (b) upon a grant of an Option
or Stock Appreciation Right, the number of Shares available for issuance under the Plan shall be
reduced by an amount equal to the number of Shares subject to such Award, and any Shares underlying
such an Award that become available for future grant under the Plan pursuant to Section 2.2 shall
be added back to the Plan in an amount equal to the number of Shares subject to such an Award that
become available for future grant under the Plan pursuant to Section 2.2. Without limiting the
foregoing, with respect to any Stock Appreciation Right that is settled in Shares, the full number
of Shares subject to the Award shall count against the number of Shares available for Awards under
the Plan regardless of the number of Shares used to settle the Stock Appreciation Right upon
exercise.
2.2
Share Usage
. In addition to the number of Shares provided for in Section 2.1, the
following Shares shall be available for Awards under the Plan (a) Shares covered by an Award that
expires or is forfeited, canceled, surrendered or otherwise terminated without the issuance of such
Shares, (b) Shares covered by an Award that is settled only in cash, (c) Shares granted through the
assumption of, or in substitution for, outstanding awards granted by a company to individuals who
become Employees, Directors or Consultants as the result of a merger, consolidation, acquisition or
other corporate transaction involving such company and the Company or any Affiliate, and (d) any
Shares from awards exercised for or settled in vested and nonforfeitable Shares that are later
returned to the Company pursuant to any compensation recoupment policy, provision or agreement.
Nothing in the foregoing shall be construed as permitting any Shares surrendered upon exercise of
an Award as payment of the applicable exercise price or withheld to satisfy any applicable taxes to
be again available for Awards under the Plan.
2.3
Fiscal Year Limits
. Subject to Section 2.4 and unless and until the Committee determines
that an Award to a Covered Employee shall not be designed as qualified performance-based
compensation under Section 162(m) of the Code, during any fiscal year of the Company, the
Committee may not grant to any Participant who is a Covered Employee (a) Options covering more than
250,000 Shares; (b) Stock Appreciation Rights covering more than 250,000 Shares, (c)
Performance-Based Awards that are to be settled in Shares covering more than 150,000 Shares, and
(d) Performance-Based Awards that are to be settled in cash equal to more than $3,000,000.
2.4
Adjustments
. In the event of any Share dividend, Share split, recapitalization (including
payment of an extraordinary dividend), merger, reorganization, consolidation, combination,
spin-off, distribution of assets to stockholders, exchange of Shares or any other change affecting
the Shares, the Committee shall make such substitutions and adjustments, if any, as it deems
equitable and appropriate to (a) the aggregate number of Shares that may be issued under the Plan,
(b) any Share-based limits imposed under the Plan, and (c) the exercise price, number of Shares and
other terms or limitations applicable to outstanding Awards. Notwithstanding the foregoing, an
adjustment pursuant to this Section 2.4 shall be made only to the extent such adjustment complies,
to the extent applicable, with Section 409A of the Code.
5
2.5
Full Value Awards
. Notwithstanding anything in the Plan to the contrary, the Committee
may grant Full Value Awards covering up to ten percent (10%) of the Shares available for issuance
pursuant to Section 2.1 without regard to the minimum vesting requirements of Sections 7.3(a), 8.3,
and 9.1 of the Plan.
ARTICLE III
ADMINISTRATION
3.1
In General
. The Plan shall be administered by the Committee. The Committee shall have
full power and authority to: (a) interpret the Plan and any Award Agreement; (b) establish, amend
and rescind any rules and regulations relating to the Plan; (c) select Participants; (d) establish
the terms and conditions of any Award consistent with the terms and conditions of the Plan,
including the dates on which Awards may vest and be exercised, the acceleration of any such dates
and the expiration date of any Award; and (e) make any other determinations that it deems necessary
or desirable for the administration of the Plan. The Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or in any Award Agreement in the manner and to
the extent the Committee deems necessary or desirable. Any decision of the Committee in the
interpretation and administration of the Plan shall be made in the Committees sole and absolute
discretion and shall be final, conclusive and binding on all persons.
3.2
Delegation of Duties
. In its sole discretion, the Committee may delegate any ministerial
duties associated with the Plan to any person (including Employees) it deems appropriate; provided,
however, that the Committee may not delegate (a) any duties that it is required to discharge to
comply with Section 162(m) of the Code or any other applicable law, (b) its authority to grant
Awards to any Participant who is subject to Section 16 of the Act, or (c) its authority under any
equity award granting policy of the Company that may be in effect from time to time.
ARTICLE IV
ELIGIBILITY
Any Employee, Director or Consultant selected by the Committee shall be eligible to be a
Participant in the Plan; provided, however, that Incentive Stock Options shall only be granted to
Employees who are employed by the Company or a Subsidiary.
ARTICLE V
OPTIONS
5.1
Grant of Options
. Subject to the terms and conditions of the Plan, Options may be granted
to Participants in such number, and upon such terms and conditions, as shall be determined by the
Committee in its sole discretion.
5.2
Award Agreement
. Each Option shall be evidenced by an Award Agreement that shall specify
the exercise price, the term of the Option, the number of Shares covered by the Option, the
conditions upon which the Option shall become vested and exercisable and such other terms and
conditions as the Committee shall determine and which are not inconsistent with the terms and
conditions of the Plan. The Award Agreement also shall specify whether the Option is intended to
be an Incentive Stock Option or a Nonqualified Stock Option.
5.3
Exercise Price
. The exercise price per Share of an Option shall be determined by the
Committee at the time the Option is granted; provided, however, that in no event shall the exercise
price per Share of any Option be less than one hundred percent (100%) of the Fair Market Value of a
Share on the date of grant.
5.4
Term
. The term of an Option shall be determined by the Committee; provided, however, that
in no event shall the term of any Option exceed ten (10) years from its date of grant.
5.5
Exercisability
. Options shall become exercisable at such times and upon such terms and
conditions as shall be determined by the Committee. Such terms and conditions may include, without
limitation, the satisfaction of (a) performance goals based on one or more Performance Criteria, or
(b) time-based vesting requirements.
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5.6
Exercise of Options
. Except as otherwise provided in the Plan or in a related Award
Agreement, an Option may be exercised for all or any portion of the Shares for which it is then
exercisable. An Option shall be exercised by the delivery of a notice of exercise to the Company
or its designee in a form specified by the Committee which sets forth the number of Shares with
respect to which the Option is to be exercised and full payment of the exercise price for such
Shares. The exercise price of an Option may be paid (a) in cash or its equivalent, (b) by
tendering (either by actual delivery or attestation) previously acquired Shares having an aggregate
Fair Market Value at the time of exercise equal to the aggregate exercise price; provided that such
Shares had been held for at least six months or such other period required to obtain favorable
accounting treatment and to comply with the requirements of Section 16 of the Act, (c) by a
cashless exercise (including by withholding Shares deliverable upon exercise and through a
broker-assisted arrangement to the extent permitted by applicable law); (d) by a combination of the
methods described in clauses (a), (b) and/or (c); or (e) though any other method approved by the
Committee in its sole discretion. As soon as practicable after receipt of the notification of
exercise and full payment of the exercise price, the Company shall cause the appropriate number of
Shares to be issued to the Participant.
5.7
Special Rules Applicable to Incentive Stock Options
. Notwithstanding any other provision
in the Plan to the contrary:
(a) The terms and conditions of Incentive Stock Options shall be subject to and comply with
the requirements of Section 422 of the Code.
(b) The aggregate Fair Market Value of the Shares (determined as of the date of grant) with
respect to which Incentive Stock Options are exercisable for the first time by any Participant
during any calendar year (under all plans of the Company and its Subsidiaries) may not be greater
than $100,000 (or such other amount specified in Section 422 of the Code), as calculated under
Section 422 of the Code.
(c) No Incentive Stock Option shall be granted to any Participant who, at the time the
Incentive Stock Option is granted, owns stock possessing more than ten percent of the total
combined voting power of all classes of stock of the Company or of any Subsidiary, unless: (i) the
exercise price of such Incentive Stock Option is at least 110 percent of the Fair Market Value of a
Share on the date the Incentive Stock Option is granted; and (ii) the date on which such Incentive
Stock Option will expire is not later than five years from the date the Incentive Stock Option is
granted.
ARTICLE VI
STOCK APPRECIATION RIGHTS
6.1
Grant of Stock Appreciation Rights
. Subject to the terms and conditions of the Plan,
Stock Appreciation Rights may be granted to Participants in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole discretion.
6.2
Award Agreement
. Each Stock Appreciation Right shall be evidenced by an Award Agreement
that shall specify the exercise price, the term of the Stock Appreciation Right, the number of
Shares covered by the Stock Appreciation Right, the conditions upon which the Stock Appreciation
Right shall become vested and exercisable and such other terms and conditions as the Committee
shall determine and which are not inconsistent with the terms and conditions of the Plan.
6.3
Exercise Price
. The exercise price per Share of a Stock Appreciation Right shall be
determined by the Committee at the time the Stock Appreciation Right is granted; provided, however,
that in no event shall the exercise price per Share of any Stock Appreciation Right be less than
100 percent of the Fair Market Value of a Share on the date of grant.
6.4
Term
. The term of a Stock Appreciation Right shall be determined by the Committee;
provided however, that in no event shall the term of any Stock Appreciation Right exceed ten years
from its date of grant.
6.5
Exercisability of Stock Appreciation Rights
. A Stock Appreciation Right shall become
exercisable at such times and upon such terms and conditions as may be determined by the Committee.
Such terms and conditions
may include, without limitation, the satisfaction of (a) performance goals based on one or
more Performance Criteria, or (b) time-based vesting requirements.
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6.6
Exercise of Stock Appreciation Rights
. Except as otherwise provided in the Plan or in a
related Award Agreement, a Stock Appreciation Right may be exercised for all or any portion of the
Shares for which it is then exercisable. A Stock Appreciation Right shall be exercised by the
delivery of a notice of exercise to the Company or its designee in a form specified by the
Committee which sets forth the number of Shares with respect to which the Stock Appreciation Right
is to be exercised. Upon exercise, a Stock Appreciation Right shall entitle a Participant to an
amount equal to: (a) the excess of (i) the Fair Market Value of a Share on the exercise date over
(ii) the exercise price per Share; multiplied by (b) the number of Shares with respect to which the
Stock Appreciation Right is exercised. A Stock Appreciation Right may be settled in full Shares,
cash or a combination thereof, as specified by the Committee in the related Award Agreement.
ARTICLE VII
RESTRICTED STOCK
7.1
Grant of Restricted Stock
. Subject to the terms and conditions of the Plan, Shares of
Restricted Stock may be granted to Participants in such number, and upon such terms and conditions,
as shall be determined by the Committee in its sole discretion.
7.2
Award Agreement
. Each Restricted Stock Award shall be evidenced by an Award Agreement
that shall specify the number of Shares of Restricted Stock, the restricted period(s) applicable to
the Shares of Restricted Stock, the conditions upon which the restrictions on the Shares of
Restricted Stock will lapse and such other terms and conditions as the Committee shall determine
and which are not inconsistent with the terms and conditions of the Plan.
7.3
Terms, Conditions and Restrictions
.
(a) The Committee shall impose such other terms, conditions and/or restrictions on any Shares
of Restricted Stock as it may deem advisable, including, without limitation, a requirement that the
Participant pay a purchase price for each Share of Restricted Stock, restrictions based on the
achievement of specific performance goals (which may be based on one or more of the Performance
Criteria), time-based restrictions or holding requirements or sale restrictions placed on the
Shares by the Company upon vesting of such Restricted Stock. Notwithstanding the foregoing,
subject to Section 2.5 and Article XIII of the Plan or as described in the related Award Agreement
in connection with a Participants death, termination due to Disability and/or Retirement, no
condition on vesting of a Restricted Stock Award that is based upon achievement of specified
performance goals shall be based on performance over a period of less than one year and no
condition on vesting of a Restricted Stock Award that is based upon continued employment or the
passage of time shall provide for vesting in full of the Restricted Stock Award more quickly than
in pro rata installments over three years from the date of grant of the Award.
(b) To the extent deemed appropriate by the Committee, the Company may retain the certificates
representing Shares of Restricted Stock in the Companys possession until such time as all terms,
conditions and/or restrictions applicable to such Shares have been satisfied or lapse.
(c) Unless otherwise provided in the related Award Agreement or required by applicable law,
the restrictions imposed on Shares of Restricted Stock shall lapse upon the expiration or
termination of the applicable restricted period and the satisfaction of any other applicable terms
and conditions.
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7.4
Rights Associated with Restricted Stock during Restricted Period
. During any restricted
period applicable to Shares of Restricted Stock:
(a) Such Shares of Restricted Stock may not be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated.
(b) Unless otherwise provided in the related Award Agreement: (i) the Participant shall be
entitled to exercise full voting rights associated with such Shares of Restricted Stock; and (ii)
the Participant shall be entitled to all dividends and other distributions paid with respect to
such Shares of Restricted Stock during the restricted period; provided, however, that receipt of
any such dividends or other distributions will be subject to the same terms and conditions as the
Shares of Restricted Stock with respect to which they are paid.
ARTICLE VIII
RESTRICTED STOCK UNITS
8.1
Grant of Restricted Stock Units
. Subject to the terms and conditions of the Plan,
Participants may be granted Restricted Stock Units in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole discretion.
8.2
Award Agreement
. Each Award of Restricted Stock Units shall be evidenced by an Award
Agreement that shall specify the number of Shares underlying the Award, the restricted period(s),
the conditions upon which the restrictions on the Restricted Stock Units will lapse, the time at
and form in which the Restricted Stock Units will be settled, and such other terms and conditions
as the Committee shall determine and which are not inconsistent with the terms and conditions of
the Plan.
8.3
Terms, Conditions and Restrictions
. The Committee shall impose such other terms,
conditions and/or restrictions on any Award of Restricted Stock Units as it may deem advisable,
including, without limitation, restrictions based on the achievement of specific performance goals
(which may be based on one or more of the Performance Criteria), time-based restrictions or holding
requirements or sale restrictions placed on the Shares by the Company upon vesting of such
Restricted Stock. Notwithstanding the foregoing, subject to Section 2.5 and Article XIII of the
Plan or as described in the related Award Agreement in connection with a Participants death,
termination due to Disability and/or Retirement, no condition on vesting of an Award of Restricted
Stock Units that is based upon achievement of specified performance goals shall be based on
performance over a period of less than one year and no condition on vesting of an Award of
Restricted Stock Units that is based upon continued employment or the passage of time shall provide
for vesting in full of the Restricted Stock Units more quickly than in pro rata installments over
three years from the date of grant of the Award.
8.4
Form of Settlement
. An Award of Restricted Stock Units may be settled in full Shares,
cash or a combination thereof, as specified by the Committee in the related Award Agreement.
8.5
Dividend Equivalents
. Awards of Restricted Stock Units may provide the Participant with
dividend equivalents, as determined by the Committee in its sole discretion and set forth in the
related Award Agreement. In no event will a Participant have any voting rights with respect to the
Shares underlying the Restricted Stock Units.
ARTICLE IX
OTHER STOCK-BASED AWARDS
9.1
Grant of Other Stock-Based Awards
. Subject to the terms and conditions of the Plan, Other
Stock-Based Awards may be granted to Participants in such number, and upon such terms and
conditions, as shall be determined by the Committee in its sole discretion. Other Stock-Based
Awards are Awards that are valued in whole or in part by reference to, or otherwise based on the
Fair Market Value of, the Shares, and shall be in such form as the Committee shall determine,
including without limitation, (a) unrestricted Shares, whole or otherwise, or (b) performance-based
restricted stock units that are settled in Shares and/or cash. Notwithstanding the foregoing,
subject to Section 2.5 and Article XIII of the Plan or as described in the related Award Agreement
in connection with a Participants death, termination due to Disability and/or Retirement, no
condition on vesting of an Other Stock-Based Award that is based upon achievement of specified
performance goals shall be based on performance over a period of less than one year and no
condition on vesting of an Other Stock-Based Award that is based upon continued employment or the
passage of time shall provide for vesting in full of the Other Stock-Based Award more quickly than
in pro rata installments over three years from the date of grant of the Award.
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9.2
Award Agreement
. Each Other Stock-Based Award shall be evidenced by an Award Agreement
that shall specify the terms and conditions upon which the Other Stock-Based Award shall become
vested, if applicable,
the time and method of settlement, the form of settlement and such other terms and conditions
as the Committee shall determine and which are not inconsistent with the terms and conditions of
the Plan.
9.3
Form of Settlement
. An Other Stock-Based Award may be settled in full Shares, cash or a
combination thereof, as specified by the Committee in the related Award Agreement.
9.4
Dividend Equivalents
. Awards of Other Stock-Based Awards may provide the Participant with
dividend equivalents, as determined by the Committee in its sole discretion and set forth in the
related Award Agreement. Nothing in the foregoing shall be construed as permitted dividend
equivalents to be provided with respect to any unearned Performance Award.
ARTICLE X
CASH-BASED AWARDS
Subject to the terms and conditions of the Plan, Cash-Based Awards may be granted to
Participants in such amounts and upon such other terms and conditions as shall be determined by the
Committee in its sole discretion. Each Cash-Based Award shall be evidenced by an Award Agreement
that shall specify the payment amount or payment range, the time and method of settlement and the
other terms and conditions, as applicable, of such Award which may include, without limitation,
performance objectives and that the Cash-Based Award is a Performance-Based Award under Article XI.
ARTICLE XI
PERFORMANCE-BASED AWARDS
11.1
In General
. Notwithstanding anything in the Plan to the contrary, Cash-Based Awards,
Shares of Restricted Stock and Other Stock-Based Awards may be granted in a manner which is
deductible by the Company under Section 162(m) of the Code as Performance-Based Awards. As
determined by the Committee in its sole discretion, the grant, vesting, exercisability and/or
settlement of any Performance-Based Award shall be conditioned on the attainment of performance
goals based upon one or more Performance Criteria during a performance period established by the
Committee. Any such Performance-Based Award must meet the requirements of this Article XI.
11.2
Performance Criteria
.
(a) For purposes of the Plan, the Performance Criteria for Participants who are or are
likely to be Covered Employees may be based upon or derived from any of the following:
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(i)
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Net earnings;
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(ii)
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Earnings per Share;
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(iii)
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Net sales;
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(iv)
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Net income (before and after taxes);
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(v)
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Net income;
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(vi)
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Net operating profit;
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(vii)
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Return measures (including return on assets, capital, equity or sales);
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(viii)
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Cash flow (including operating cash flow and free cash flow);
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(ix)
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Cash flow return on capital;
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(x)
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Earnings before and after taxes, interest, depreciation and/or
amortization;
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(xi)
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Gross or operating margins;
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(xii)
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Productivity ratios;
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(xiii)
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Share price (including total stockholder return);
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(xiv)
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Expense targets; and
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(xv)
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Margins.
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(b) Performance Criteria may relate to the individual Participant, the Company, the Company
and one or more Affiliate or one or more of their respective divisions or business units, or any
combination of the foregoing, and may be applied on an absolute basis and/or be relative to one or
more peer group companies or indices, or any combination thereof, in each case, as determined by
the Committee in its sole discretion.
11.3
Establishment of Performance Goals
. With respect to Performance-Based Awards for
Participants who are or are likely to be Covered Employees, the Committee shall establish (a) the
applicable performance goals and performance period, (b) the formula for computing the
Performance-Based Award and (c) such other terms and conditions applicable to the Performance-Based
Award in writing while the outcome of the applicable performance period is substantially uncertain,
but in no event later than the earlier of: (i) 90 days after the beginning of the applicable
performance period; or (ii) the expiration of 25 percent of the applicable performance period.
11.4
Certification of Performance
. With respect to Performance-Based Awards for Participants
who are or are likely to be Covered Employees and that are intended to constitute qualified
performance based compensation within the meaning of Section 162(m) of the Code, the Committee
shall certify in writing whether the applicable performance goals and other material terms imposed
on such Performance-Based Awards have been satisfied, and, if they have, ascertain the amount of
the applicable Performance-Based Award. No such Performance-Based Award shall be granted, vested,
exercisable and/or settled, as the case may be, until the Committee makes this certification.
11.5
Modifying Performance-Based Awards
. To the extent consistent with Section 162(m) of the
Code, performance goals relating to such Performance-Based Awards may be calculated without regard
to extraordinary items or adjusted, as the Committee deems equitable, in recognition of unusual or
non-recurring events affecting the Company and/or its Affiliates or changes in applicable tax laws
or accounting principles.
11.6
Negative Discretion
. In the Committees sole discretion, the amount of a
Performance-Based Award actually paid to a Participant may be less than the amount otherwise
payable based on the satisfaction of the performance goals and other materials terms of the
Performance-Based Award.
ARTICLE XII
TERMINATION OF EMPLOYMENT OR SERVICE
With respect to each Award granted under the Plan, the Committee shall, subject to the terms
and conditions of the Plan, determine the extent to which the Award shall vest and the extent to
which the Participant shall have the right to exercise and/or receive settlement of the Award on or
following the Participants termination of employment or services with the Company and/or an
Affiliate. Such provisions shall be determined in the sole discretion of the Committee at any time
prior to or after such termination, shall be included in the related Award Agreement or an
amendment thereto, need not be uniform among all Awards granted under the Plan and may reflect
distinctions based on the reasons for termination.
Subject to Sections 7.3(a), 8.3 and 9.1, or as otherwise provided in the Plan, the vesting
conditions of an Award may only be accelerated upon the death, termination due to Disability,
Retirement or involuntary termination without Cause of the Participant. Notwithstanding the
foregoing, in no event shall any Performance-Based Award granted to a Covered Employee that is
intended to constitute qualified performance-based compensation under Section 162(m) of the Code,
be settled or become exercisable in full, upon the termination of employment of the Covered
Employee without regard to the satisfaction of the related Performance Criteria.
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ARTICLE XIII
CHANGE IN CONTROL
13.1
Exercise and Settlement.
Except as otherwise provided in the related Award Agreement,
upon the occurrence of a Change in Control: (a) all of Participants Awards will be fully vested;
(b) all performance objectives relating to a Participants Awards will be deemed to have been
satisfied (and, if the performance objectives required that performance be attained at a target
level, the performance objectives will be deemed to have been satisfied at that target level) as
of the date of such Change in Control; (c) all Options and Stock Appreciation Rights will be fully
exercisable; and (d) all Awards other than Options and Stock Appreciation Rights will be paid or
settled, as the case may be, within 60 days following the date of such Change in Control. Any
action relating to an Award that is subject to Section 409A of the Code shall be consistent with
the requirements thereof.
13.2.
Effect of Section 280G of the Code.
Unless specified otherwise in the associated Award
Agreement or in another written agreement between the Participant and the Company or any Affiliate,
if the Company concludes that any payment or benefit due to a Participant under the Plan, when
combined with any other payment or benefit due to the Participant from the Company or any other
entity (collectively, the Payor), would be considered a parachute payment within the meaning of
Section 280G of the Code, the Payor will reduce the payments and benefits due to the Participant
under the Plan to $1.00 less than the amount that would otherwise be considered a parachute
payment within the meaning of Section 280G of the Code. Any reduction pursuant to this Section
13.2 shall be made in accordance with Section 409A of the Code and the Treasury Regulations
promulgated thereunder.
ARTICLE XIV
AMENDMENT OR TERMINATION OF THE PLAN
14.1
In General
. The Board or the Committee may amend or terminate the Plan at any time;
provided, however, that no amendment or termination shall be made without the approval of the
Companys stockholders to the extent that (a) the amendment materially increases the benefits
accruing to Participants under the Plan, (b) the amendment materially increases the aggregate
number of Shares authorized for grant under the Plan (excluding an increase in the number of Shares
that may be issued under the Plan as a result of Section 2.4), (c) the amendment materially
modifies the requirements as to eligibility for participation in the Plan, or (d) such approval is
required by any law, regulation or stock exchange rule.
14.2
Repricing
. Except for adjustments made pursuant to Section 2.4 of the Plan, in no event
may the Board or the Committee amend the terms of an outstanding Award to reduce the exercise price
of an outstanding Option or Stock Appreciation Right or cancel an outstanding Option or Stock
Appreciation Right in exchange for cash, other Awards or Options or Stock Appreciation Rights with
an exercise price that is less than the exercise price of the original Option or Stock Appreciation
Right without stockholder approval.
ARTICLE XV
TRANSFERABILITY
15.1 Except as described in Section 15.2 or as provided in a related Award Agreement, an Award
may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated, except by
will or the laws of descent and distribution and, during a Participants lifetime, may be exercised
only by the Participant or the Participants guardian or legal representative. Notwithstanding any
provision contained in this Article XV, no Award may be transferred by a Participant for value or
consideration.
15.2 Unless otherwise specifically designated by the Participant in writing, a Participants
beneficiary under the Plan shall be the Participants spouse or, if no spouse survives the
Participant, the Participants estate.
ARTICLE XVI
MISCELLANEOUS
16.1
No Right to Continued Service or to Awards
. The granting of an Award under the Plan
shall impose no obligation on the Company or any Affiliate to continue the employment or services
of a Participant or interfere with or limit the right of the Company or any Affiliate to terminate
the services of any Employee, Director or
Consultant at any time. In addition, no Employee, Director or Consultant shall have any right
to be granted any Award, and there is no obligation for uniformity of treatment of Participants.
The terms and conditions of Awards and the Committees interpretations and determinations with
respect thereto need not be the same with respect to each Participant.
12
16.2
Tax Withholding
.
(a) The Company or an Affiliate, as applicable, shall have the power and the right to deduct,
withhold or collect any amount required by law or regulation to be withheld with respect to any
taxable event arising with respect to an Award granted under the Plan. This amount may, as
determined by the Committee in its sole discretion, be: (i) withheld from other amounts due to the
Participant; (ii) withheld from the value of any Award being settled or any Shares being
transferred in connection with the exercise or settlement of an Award; (iii) withheld from the
vested portion of any Award (including the Shares transferable thereunder), whether or not being
exercised or settled at the time the taxable event arises; or (iv) collected directly from the
Participant.
(b) Subject to the approval of the Committee, a Participant may elect to satisfy the
withholding requirement, in whole or in part, by having the Company or an Affiliate, as applicable,
withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the
minimum statutory total tax that could be imposed on the transaction; provided that such Shares
would otherwise be distributable to the Participant at the time of the withholding and if such
Shares are not otherwise distributable at the time of the withholding, provided that the
Participant has a vested right to distribution of such Shares at such time. All such elections
shall be irrevocable and made in writing and shall be subject to any terms and conditions that the
Committee, in its sole discretion, deems appropriate.
16.3
Requirements of Law
. The grant of Awards and the issuance of Shares shall be subject to
all applicable laws, rules and regulations (including applicable federal and state securities laws)
and to all required approvals of any governmental agencies or national securities exchange, market
or other quotation system. Without limiting the foregoing, the Company shall have no obligation to
issue Shares under the Plan prior to (a) receipt of any approvals from any governmental agencies or
national securities exchange, market or quotation system that the Committee deems necessary and (b)
completion of registration or other qualification of the Shares under any applicable federal or
state law or ruling of any governmental agency that the Committee deems necessary.
16.4
Legends
. Certificates for Shares delivered under the Plan may be subject to such stock
transfer orders and other restrictions that the Committee deems advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission, any stock exchange or
other recognized market or quotation system upon which the Shares are then listed or traded, or any
other applicable federal or state securities law. The Committee may cause a legend or legends to
be placed on any certificates issued under the Plan to make appropriate reference to restrictions
within the scope of this Section 16.4.
16.5
Uncertificated Shares
. To the extent that the Plan provides for the issuance of
certificates to reflect the transfer of Shares, the transfer of Shares may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or the applicable rules of
any stock exchange.
16.6
Governing Law
. The Plan and all Award Agreements shall be governed by and construed in
accordance with the laws of (other than laws governing conflicts of laws) the State of Ohio, except
to the extent that the laws of the state in which the Company is incorporated are mandatorily
applicable.
16.7
No Impact on Benefits
. Awards are not compensation for purposes of calculating a
Participants rights under any employee benefit plan that does not specifically require the
inclusion of Awards in calculating benefits.
16.8
Rights as a Stockholder
. Except as otherwise provided in the Plan or in a related Award
Agreement, a Participant shall have none of the rights of a stockholder with respect to Shares
covered by an Award unless and until the Participant becomes the record holder of such Shares.
16.9
Successors and Assigns
. The Plan shall be binding on all successors and assigns of the
Company and each Participant, including without limitation, the estate of such Participant and the
executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or
representative of the Participants creditors.
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16.10
Section 409A of the Code
.
(a) Awards granted pursuant to the Plan that are subject to Section 409A of the Code, or that
are subject to Section 409A but for which an exception from Section 409A of the Code applies, are
intended to comply with or be exempt from Section 409A of the Code and the Treasury Regulations
promulgated thereunder, and the Plan shall be interpreted, administered and operated accordingly.
(b) If a Participant is determined to be a specified employee (within the meaning of Section
409A of the Code and as determined under the Companys policy for determining specified employees),
the Participant shall not be entitled to payment or to distribution of any portion of an Award that
is subject to Section 409A of the Code (and for which no exception applies) and is payable or
distributable on account of the Participants separation from service (within the meaning of
Section 409A of the Code) until the expiration of six months from the date of such separation from
service (or, if earlier, the Participants death). Such Award, or portion thereof, shall be paid
or distributed on the first business day of the seventh month following such separation from
service.
(c) Nothing in the Plan shall be construed as an entitlement to or guarantee of any particular
tax treatment to a Participant, and none of the Company, its Affiliates, the Board or the Committee
shall have any liability with respect to any failure to comply with the requirements of Section
409A of the Code.
16.11
Foreign Employees
. Without amending the Plan, the Committee may grant Awards to
Participants who are foreign nationals on such terms and conditions different from those specified
in the Plan as may in the judgment of the Committee be necessary or desirable to foster and promote
achievement of the purposes of the Plan, and, in furtherance of such purposes, the Committee may
make such modifications, amendments, procedures, and the like as may be necessary or advisable to
comply with provisions of laws of other countries in which the Company or its Subsidiaries operate
or have employees
16.12
Savings Clause
. In the event that any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of
the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had
not been included.
ARTICLE XVII
EFFECTIVE DATE AND TERM OF THE PLAN
This Plan shall be effective upon its approval by the stockholders. No Incentive Stock
Options shall be granted under the Plan after October 14, 2020, and no other Awards shall be
granted under the Plan after the tenth anniversary of the effective date of the Plan or, if
earlier, the date the Plan is terminated. Notwithstanding the foregoing, the termination of the
Plan shall not preclude the Company from complying with the terms of Awards outstanding on the date
the Plan terminates.
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